First Amendment

She’s dangerously thick but in a position of power. This is the woman who attempted to redefine what it means to be Catholic (because actual Catholicism didn’t support her views on abortion). She passed a piece of legislation called ObamaCare without even knowing what was in it.

Now she wants to redefine free speech. Said Ms. Pelosi, while discussing Citizens United v. FEC (via The Rightscoop):

We have a clear agenda in this regard: Disclose, reform the system reducing the roll of money in campaigns, and amend the Constitution to rid it of this ability for special interests to use secret, unlimited, huge amounts of money flowing to campaigns.

I think one of the presenters [at a Democratic forum on amending the Constitution] yesterday said that the Supreme Court had unleashed a predator that was oozing slime into the political system, and that, indeed, is not an exaggeration. Our Founders had an idea. It was called democracy. It said elections are determined by the people, the voice and the vote of the people, not by the bankrolls of the privileged few. This Supreme Court decision flies in the face of our Founders’ vision and we want to reverse it.

Obviously she’s about as much a Constitutional Scholar as our President.

The First Amendment pertains to freedom of political speech and requires Congress to “make no law …” that would suppress it.

The best campaign finance reform is still transparency. If burning a flag in the street is free speech, then so are political contributions, especially when made in the open. If the reformers in Congress want to clean up elections, then force immediate reporting on the Internet of all contributions to all presidential, Senate, and Congressional races, and full weekly financial reports on expenditures. That will do more than all of the speech-restricting, unconstitutional efforts made since Watergate, and make the entire system a lot more honest.

That’s where she and the left should be headed with this (after this campaign season of course – they want all that slime to flow into their coffers for at least the rest of this year).

When you see someplace begin to try to legislate feelings and intentions, well you’re looking at a place that is headed toward more and more authoritarian government. Tennessee recently passed a law which make it a crime to post images which cause “emotional distress” without a “legitimate purpose”.

One has no idea what constitutes “emotional distress” or how one decides if the “purpose” is “legitimate”, but it certainly suggests someone will and that someone will be the state.

(a) A person commits an offense who intentionally:

(4) Communicates with another person or transmits or displays an image in a manner in which there is a reasonable expectation that the image will be viewed by the victim by [by telephone, in writing or by electronic communication] without legitimate purpose:

(A) (i) With the malicious intent to frighten, intimidate or cause emotional distress; or

(ii) In a manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and

(B) As the result of the communication, the person is frightened, intimidated or emotionally distressed.

When you see language like you see in this law, the extent to which it can be abused and used to, ironically, “frighten, intimidate or emotionally distress” someone supposedly in violation of it are evident.

If you’re posting a picture of someone in an embarrassing situation — not at all limited to, say, sexually themed pictures or illegally taken pictures — you’re likely a criminal unless the prosecutor, judge, or jury concludes that you had a “legitimate purpose.”

Likewise, if you post an image intended to distress some religious, political, ethnic, racial, etc. group, you too can be sent to jail if governments decision maker thinks your purpose wasn’t “legitimate.” Nothing in the law requires that the picture be of the “victim,” only that it be distressing to the “victim.”

The same is true even if you didn’t intend to distress those people, but reasonably should have known that the material — say, pictures of Mohammed, or blasphemous jokes about Jesus Christ, or harsh cartoon insults of some political group — would “cause emotional distress to a similarly situated person of reasonable sensibilities.”

And of course the same would apply if a newspaper or TV station posts embarrassing pictures or blasphemous images on its site.

This is clearly the end-game of this pernicious trend that supports this pseudo-right we have to not be offended. Obviously, you have no such right. But when the state gets into this sort of territory, it is not headed toward the slippery slope, it’s bobsledding down the slope.

This is clearly a law designed to stifle what any person of “reasonable sensibilities” would call free speech. What most who understand the right emphasize is that its strength is in the fact that we don’t penalize those who say things we don’t like, but protect their right to do so even while we denounce what they say.

This is another of those freedoms that is constantly under assault by the authoritarians among us who, for whatever reason, think it is their job to control every aspect of our lives, to include what we can and can’t say. So, as in the case of Tennessee, they criminalized behavior which might “frighten, intimidate or emotionally disturb”.

Really – I can think of any number of movies which do precisely that for any number of people – is Tennessee going to ban them? Books? Political writing (that is intended to “frighten, intimidate or emotionally disturb” readers? If you’re from another state and you have a bumper sticker that “frightens, intimidates or emotionally distresses” someone (say an abortion sticker or one that denounces Islamists) am I subject to Tennessee’s liberty destroying law?

And how does this law coexist with our right, codified in the First Amendment, that claims we can speak freely without considering any of those concerns?

Busybody lawmakers with an authoritarian streak make bad law and shred our basic rights. I’m sure they’d explain it as an attempt to ensure others aren’t offended. I, on the other hand, find that sort of nonsense un-American and unconstitutional. Repeal the law, Tennessee. Rejoin the rest of the union and quit being so afraid of free speech. Most of all, grow up and quit worrying about others being offended. That’s their problem – not the state’s.

So – who do you suppose the lone dissenter was? I would almost bet you won’t guess correctly. I didn’t.

Anyway, the court found that the law was overly broad and while aimed at outlawing some dispicable videos known as “crush videos” (as an aside, when you read what a crush video is, you will indeed understand that there are some very sick people in this world). However, the law could also be used to prosecute hunting videos as well.

The government had argued that “certain categories of speech deserve constitutional protection depends on balancing the value of the speech against its societal costs”.

Writing for the majority Chief Justice John Roberts explains why the court rejected that argument:

“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits,” Roberts wrote. “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

Or said another way, the court refused to allow the government to institute arbitrary or “ad hoc” standards that “balance relative social costs and benefits”. One can, or should be able to see the very slippery slope to where that sort of reasoning leads – and it certainly could lead to serious restrictions of the right to free speech depending on how government deicides to “balance” those costs and benefits in the future. Remember – the First Amendment is a restriction on government, not the people. And the court enforced that.

The lone dissenter? Sam Alito who wrote:

“The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes.”

The prosecute the criminal for the crime he has filmed for you. I can think of nothing that stops the law from doing that. And that has nothing to do with restricting the First Amendment.

As we discussed on the last podcast, as well as in various posts here at QandO, the biggest missed opportunity in the whole Gates kerfuffle was to draw attention to the civil liberties issues. By immediately crying racial profiling, Prof. Gates clouded an otherwise sympathetic view of his standing as a homeowner. Of course, if he hadn’t behaved the way that he did (calling Sgt. Crowley a racist cop), then he likely would never had been arrested in the first place. Nevertheless, what we should have taken from the l’affair Gates was that scenes such as the following are all too familiar:

Pepin Tuma, 33, was walking with two friends along Washington’s hip U Street corridor around midnight Saturday, complaining about how Gates had been rousted from his home for not showing a proper amount of deference to a cop. “We’d been talking about it all day,” said Tuma. “It seems like police have a tendency to act overly aggressively when they’re being pushed around,” Tuma recalled saying.

Then the group noticed five or six police cruisers surrounding two cars in an apparent traffic stop on the other side of the street. It seemed to Tuma that was more cops than necessary.

“That’s why I hate the police,” Tuma said. He told the Huffington Post that in a loud sing-song voice, he then chanted, “I hate the police, I hate the police.”

One officer reacted strongly to Tuma’s song. “Hey! Hey! Who do you think you’re talking to?” Tuma recalled the officer shouting as he strode across an intersection to where Tuma was standing. “Who do you think you are to think you can talk to a police officer like that?” the police officer said, according to Luke Platzer, 30, one of Tuma’s companions.

Tuma said he responded, “It is not illegal to say I hate the police. It’s not illegal to express my opinion walking down the street.”

According to Tuma and Platzer, the officer pushed Tuma against an electric utility box, continuing to ask who he thought he was and to say he couldn’t talk to police like that.

It should come as no surprise that, in fact, Tuma was arrested on a charge of ‘disorderly conduct”:

D.C.’s disorderly conduct statute bars citizens from breaching the peace by doing anything “in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others” or by shouting or making noise “either outside or inside a building during the nighttime to the annoyance or disturbance of any considerable number of persons.”

[…]

Tuma spent a few hours in a holding cell and was released early Sunday morning after forfeiting $35 in collateral to the police, he said. A “post and forfeit” is not an admission of guilt, and Tuma doesn’t have a court date — but the arrest will pop up if an employer does a background check.

So, adding insult to injury, Tuma gets arrested for expressing his opinion on a public street, spends the night in jail, and then is “legally” pickpocketed by the police. This is a problem, just as it was with the Gates mess, and is the real issue that should be discussed.

Forget racial profiling and other obscurants for a moment and contemplate just how much power has been granted to the police here. Is that a wise decision? Surely we want the police to be able to use their judgment in a given situation, but when a law is drafted so broadly as to provide cover when a cop feels insulted then such law flies in the face of constitutional protections.

Furthermore, situations like this really undermine the concept of police being “professionals”. Having the power to arrest someone because they get a little mouthy is not a power any real professional should want or need. Being a professional means being able to negotiate the situation through one’s abilities, not through one’s grant of extraordinary power. I mean, could you imagine if lawyers had the ability to throw people in clink for insulting them? Who would be safe?

The fact of the matter is that there are just too many laws to begin with. Cut down on number if infractions cops are expected to enforce, and you will cut down on the number of incidences where the police overstep their authority. When the only thing in danger is a cop’s feelings, then I think it’s safe to say that incarcerating anyone is a monumental waste of time and resources that could be better spent going after real criminals.